Lewis v. Shell Oil Co.

• Decision Date: 14 June 1943
• Docket Number: No. 4755.,4755.
• Parties: LEWIS v. SHELL OIL CO.
• Court: U.S. District Court — Northern District of Illinois

50 F. Supp. 547

LEWIS v. SHELL OIL CO.

No. 4755.

District Court, N. D. Illinois.

June 14, 1943.

Mortimer Porges, of Chicago, Ill., for plaintiff.

C. S. Gentry, of New York City, and T. I. McKnight, of Chicago, Ill., for defendant.

SULLIVAN, District Judge.

Plaintiff, a gasoline filling station operator, brings this action at law claiming treble damages in the sum of $4,290.00 under the Clayton Act, as amended by the Robinson-Patman Act, setting up as a ground for his action that defendant company, which is engaged in the wholesale and retail selling and distributing of oil products throughout the United States, sold gasoline to other dealers within the United States at from one-half to one cent less than it sold the same products to plaintiff.

Defendant has moved to dismiss the complaint, (1) for lack of jurisdiction over the subject matter; and (2) on the ground that the complaint does not state a cause of action against defendant. In the event the complaint is held sufficient, then defendant asks for a bill of particulars.

In support of its motion to dismiss defendant has filed two affidavits (under Rule 6(d) Civil Rules of Procedure, 28 U.S.C.A. following section 723c) setting out among other things that plaintiff operated a filling station from June 9, 1939, to April 12, 1941, at No. 3139 Ogden Avenue, Chicago, Illinois, where he retailed defendant's products under a Reseller's Gasoline Sales Contract, and during which period he sold approximately 286,000 gallons of such products. Under the contract the defendant agreed to sell and deliver "by and through its tank wagons" and plaintiff agreed "to buy and receive" at his said service station his requirements of gasoline, and to pay therefor defendant's service station price "as posted at seller's bulk plant from which delivery is made to buyer," which plant is located at No. 2751 West 51st Street, Chicago, and has a storage capacity of 250,000 gallons of all kinds of gasoline which plaintiff used and might order. Pursuant to this contract plaintiff telephoned his orders from his place of business to defendant's bulk plant, whereupon plaintiff withdrew from the storage tank the amount and kind of gasoline ordered, placed it in a tank wagon and delivered it to plaintiff's station. All sales to plaintiff, and to all other customers within a radius of five miles of plaintiff's place of business were handled in this same manner during all of the time plaintiff operated his filling station. During all of this period, as well as before and up to the present time, defendant owned and operated a large refinery at Wood River, Illinois, where it refined all kinds and grades of gasoline, and shipped same by pipe lines to its storage plants at East Chicago, Indiana, from whence it was transported to defendant's bulk plants in adjoining territory. The affidavits also state that no customer of defendant within five miles of plaintiff's station received any gasoline from any other source than from defendant's bulk plant in Chicago.

Plaintiff brings this action under the Robinson-Patman Act, Title 15 U.S.C.A. §§ 13, 13a, 13b and 21a, and particularly relies on certain paragraphs of Section 13. Section 13(a) provides in part: "It shall be unlawful for any person engaged in commerce, in the course of such commerce * * * to discriminate in price * * * where either or any of the purchases involved in such discrimination are in commerce, * * * or where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them."

From a reading of the Act it is quite obvious that it covers only such discriminations as occur in the course of commerce, which in the instant case would be any such commerce conducted by defendant.

Defendant urges that none of the transactions between defendant and plaintiff, or his competitors, was in interstate commerce, hence the Robinson-Patman Act does not apply, and plaintiff therefore cannot maintain this action.

Plaintiff, on the other hand insists that defendant's sale and delivery of gasoline to him at his filling station in Chicago was a transaction in interstate commerce, and cites in support thereof the case of Midland Oil Company v. Sinclair Refining Company, D.C., 41 F.Supp. 436.

I do not agree with those decisions which hold that in cases of this type the interstate transaction continues until the bulk plant operator has delivered the gasoline into the tanks at the purchaser's filling station. Plaintiff in support of his position cites many other cases dealing with violations of the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note. In those cases the courts have almost universally held that if interstate commerce is affected or restrained by the acts or transactions complained of, then the Sherman Act has been violated, although the acts themselves may have all taken place within one state. However, there is a distinction between acts or transactions which merely affect commerce, and those which are actually performed in commerce. It is those acts and transactions which are actually performed in commerce against which the Robinson-Patman Act is specifically directed, and nowhere does that Act refer to transactions which only affect commerce. In an action brought under the Robinson-Patman Act it is necessary to allege and prove that the transactions complained of are actually in interstate commerce, while in...